The People of the State of New York v. Barbara Milsner

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department

November 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,RESPONDENT,v.BARBARA MILSNER,APPELLANT.

Appeal from judgments of the City Court of Mount Vernon, Westchester County (Mark A. Gross, J.), rendered March 19, 2008.

People v Milsner (Barbara)

Decided on November 1, 2011

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

The judgments convicted defendant, upon jury verdicts, of driving while intoxicated per se and driving while intoxicated, respectively.

ORDERED that the judgments of conviction are affirmed.

Insofar as is relevant to this appeal, defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Defense counsel filed a written motion for the suppression of statements, and a Huntley hearing was held. At the hearing, a police officer testified that defendant had twice told her that she had consumed a glass of wine. There was also testimony that defendant had stated that she was lost, that she thought that it was 11 P.M., when it was 4 A.M., and that she had cursed at a police officer. Although defendant's written motion had sought the suppression of "any and all statements" at the hearing, defense counsel only argued for the suppression of the statements concerning the wine, which statements the City Court determined could be introduced at trial. Following a jury trial, at which evidence was adduced that there was a case of full bottles of wine in defendant's car, defendant was convicted of the charged offenses.

On appeal, defendant contends that she was denied the effective assistance of counsel because defense counsel sought only to suppress certain statements, rather than to preclude all statements on the ground that the People had not provided a CPL 710.30 notice and, as a result, additional statements were allowed to be introduced into evidence; and because defense counsel failed to file a motion in limine to preclude evidence of the full bottles of wine that had been observed in her car.

Defendant's assertion of an ineffective assistance of counsel claim based on defense counsel's strategic decision to seek suppression of statements instead of moving to preclude the statements based on the People's failure to provide a CPL 710.30 notice required a CPL 440.10 motion in order to afford defense counsel an opportunity to explain his strategy (see People v Figueroa, 278 AD2d 139 [2000]; see also People v Love, 57 NY2d 998 [1982]). To the extent that the contention can be reviewed upon the record presented, the record indicates that defense counsel provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 [1995]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, defense counsel's performance can not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Defendant further contends that the City Court abused its discretion in denying her motions for a mistrial after the People's witness had testified that defendant had full bottles of wine in her car and, subsequently, the prosecutor had asked defendant on cross-examination whether she, in fact, had alcohol in her car. Defense counsel had argued, among other things, that this testimony was allegedly prejudicial in that it had "poisoned the minds of the jurors," given the charges against defendant. The decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is necessary to protect the defendant's right to a fair trial (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Redmon, 81 AD3d 752 [2011]; People v Brown, 76 AD3d 532, 533 [2010]; People v Way, 69 AD3d 964, 965 [2010]). We find that the City Court did not improvidently exercise its discretion in denying defendant's motions for a mistrial. The court properly sustained defense counsel's objections and promptly provided the jury with curative instructions which were sufficient to prevent any prejudice (see People v Hernandez, 80 AD3d 540 [2011]; People v Brown, 76 AD3d at 533; People v Way, 69 AD3d at 965), and the jury is presumed to have followed the court's instructions (see People v Davis, 58 NY2d 1102, 1104 [1983]).

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